Kenji Yoshino and Dale Carpenter discuss acclaimed new book on Lawrence v. Texas

Kenji Yoshino and Dale Carpenter discuss acclaimed new book on Lawrence v. Texas

Kenji YoshinoOn March 26, an OUTLaw-sponsored discussion between Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, and Dale Carpenter, Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, focused on Carpenter’s widely acclaimed new book, Flagrant Conduct: The Story of Lawrence v. Texas, which tells the story of the landmark Supreme Court case that overturned sodomy laws nationwide and paved the way for the same-sex marriage case that will likely end up before the Court as well.
Carpenter was practicing law in Houston in 1998 when, in that city, John Lawrence and Tyron Garner were arrested in Lawrence’s apartment. Sheriff’s deputies alleged that the two men were having sex in violation of Texas’s anti-sodomy law, which applied only to partners of the same gender. The Supreme Court ruled in Lawrence v. Texas that the law was unconstitutional. 

While writing a law review article about the case, Carpenter uncovered evidence that Lawrence and Garner may not actually have been having sex at all when they were arrested, but the men’s attorneys were reluctant to let their clients speak about the matter. Five years after Garner’s death, as Carpenter was writing Flagrant Conduct, Lawrence contacted him and said he was finally ready to talk. Lawrence asserted, six months before his own death last November, that he and his co-defendant had only been talking in his apartment that night, and that the officers made up the story after inferring that the two were gay.

That the charges on which the case was predicated may well have been false does not detract from the Lawrence opinion, Carpenter said: “In my view, the case is actually more compelling and worse if it turns out that they were not only arrested for allegedly violating an unconstitutional law where the government intruded into their own intimate lives, but they were arrested corruptly.... It opened up opportunities for vindictiveness in law enforcement, being subject to reprisal simply because you talk back to the law enforcement authorities.”

The big difference between Lawrence and Bowers v. Hardwick, an earlier opinion overturned by Lawrence that had upheld a Georgia sodomy law, was that 17 years had passed and the culture had changed, Carpenter suggested. The 5-4 Bowers decision itself had been painfully close, with Justice Lewis Powell providing the swing vote. At the time Powell had confided to one of his clerks that he was conflicted about how to vote but didn’t know any gay people, unaware that the clerk was in the closet. The clerk decided not to divulge his sexual orientation. During a 1990 visit to NYU Law, Powell dropped a bombshell when he said, “I think I probably made a mistake in the Hardwick case.”

While the Bowers opinion focused on the question of the right to engage in sodomy, the Lawrence case reflected a shift in thinking, said Carpenter: “There was a deliberate effort in the briefing to emphasize the connection of the intimate lives of gay and lesbian people to building families and homes and lasting relationships.”

As Justice Antonin Scalia predicted in his strongly worded Lawrence dissent, that ruling opened the door to current marriage-equality arguments. Lawrence, Carpenter said, removed the looming obstacle that had branded all gays and lesbians as criminals by default and justified the denial of housing, employment, and adoption rights: “To me, the irony of this is that sodomy laws were never really about prohibiting specific behaviors. They were about making an entire class of people beyond the law.... It’s somehow fitting to me that sodomy laws are undone in a case in which there very likely was no sodomy.”

Posted April 3, 2012